Death Beyond a Reasonable Doubt

In the forty-four years since the Court employed the Eighth Amendment to temporarily suspend the death penalty in the United States in Furman v. Georgia in 1972, the Court has spilled an enormous amount of ink attempting to instruct the states on how to properly guide jurors’ discretion in imposing the death penalty. Yet, in its voluminous Eighth Amendment jurisprudence, the Justices spilled not one drop suggesting the familiar and unifying standard of beyond a reasonable doubt as a guide

Toward a More Robust Right to Counsel of Choice

This Article takes its lead from the core principles of the right to counsel of choice expressed in Gonzalez-Lopez. These principles indicate that the right should include an indigent defendant\u27s right to continue an attorney-client relationship established at some point in the past, and that, for both nonindigent and indigent defendants, the right to continue a trial with counsel of choice must be honored by trial courts unless it would be unethical or manifestly unjust to do so. This means that trial courts must almost always grant a continuance to accommodate that choice and could rarely deny such a request for reasons of administrative convenience or docket control

Charging Time

On the verge of his 1,000th day in an El Paso, Texas jail, Robert Antonio Castillo was still waiting for a prosecutor to formally charge him with a crime. Mr. Castillo is one of thousands of people across the country who are arrested and jailed for weeks, months, and even years without charges. In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them. Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame, and distress. Yet this violates no laws; it circumvents no constitutional protections.To date, there has been legal scholarship about the necessity of an extended time period between arrest and formal charging by information or indictment. Many states give prosecutors extended or indefinite time periods to file indictments and informations, and prosecutors appear to take that time. Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss. In this Article, we explore the equities at stake and the realities at play in this dark period.Prosecutors’ crushing caseloads, police officers’ shoddy and inadequate investigative work, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep. Extended time in jail jeopardizes their lives, health, jobs, and case outcomes. Yet the constitutional protections granted to criminal defendants provide no remedy for this uncharged detention. After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in prosecutors’ formal charging decisions

Risking the Eight Amendment: Arbitrariness, Juries, and Discretion in Capital Cases

This Article argues that the stalled dialogue over the U.S. Supreme Court\u27s administration of capital punishment suffers from a fundamental misunderstanding of the first principles of the Eighth Amendment, Although the Court in Furman v. Georgia articulated an Eighth Amendment substantive right against the arbitrary imposition of death sentences, the Court later recast Furman to require procedures that merely reduced a substantial risk of arbitrariness. Instead, Furman mandates procedures that expose arbitrariness. The best vehicle for this is a review of jurors\u27 reasons for , imposing death in an individual case. Although there are political and practical hurdles to mining the jurors\u27 reasons for imposing death, they are far from insurmountable. Absent a moratorium, this Article advocates change that informs and exposes the process of death. As to impossibility, all I can say is that nothing is more true of [the legal) profession than that the most eminent among them, for 100 years, have testified with complete confidence that something is impossible which, once it is introduced, is found to be very easy of administration. —F. Frankfurte

Ending Injustice: Solving the Initial Appearance Crisis

Most Americans expect that if they are arrested, they will quickly appear before a judge, learn about the charges, and have an attorney assigned to defend them. The reality is vastly different. After arrest, a person can wait in jail for days, weeks, or even months before seeing a judge or meeting an attorney. This report chronicles the resulting initial appearance crisis and highlights its devastating consequences. More importantly, it provides policymakers and advocates with actionable recommendations.https://scholar.smu.edu/deasoncenter/1002/thumbnail.jp